49 S.E.2d 233 | N.C. | 1948
This is an action in ejectment, instituted 11 December, 1947. It is alleged in the complaint that the defendants are in the wrongful and unlawful possession of one and one-half acres of land in Haywood County, which the plaintiffs own in fee simple. The defendants filed an answer on 29 December, 1947, pleading sole seizin, but did not file bond pursuant to the provisions of G.S.,
The defendants filed a motion to vacate and set aside the default judgment on 21 January, 1948, tendered bond, and gave notice of such motion to the plaintiffs. The motion was heard by the Clerk of the Superior Court of Haywood County, 28 January, 1948, and was denied. The defendants appealed to the Judge of the Superior Court; notice of such appeal having been given in open court, further notice was waived.
When this cause came on for hearing before his Honor, the plaintiffs entered a special appearance and made a motion to dismiss the appeal on the ground that the order and judgment from which the purported appeal had been taken was entered by the Clerk of the Superior Court pursuant to the provisions of G.S., Sections
Moreover, G.S., Sections
It follows, therefore, that the defendants' appeal was properly before his Honor and should have been heard on its merits. Caldwell v. Caldwell,supra; Trust Co. v. Pumpelly,
The judgment of the court below is reversed, and this cause remanded to the end that defendants' appeal may be heard on its merits.
Reversed and remanded. *201